June 20, 2005

There's so much pent-up political energy on the verge of release, waiting for a Supreme Court vacancy after all these long years. I wish the Justices felt a sense of responsibility about vacating their seats after a good long sit. Maybe after twenty years, a Justice should be saying: I've had my go at this. Time to rotate out and give someone else a shot. Time to give the political world a chance to express itself again by choosing someone new.

But they hold on so long. Who knows why? They think they own their seat in some special, personal way? They think no one else can do it quite so well? They willfully oppose giving the political forces an opening to affect the Court?

It's become so amazingly abnormal to replace a Supreme Court Justice that I worry about how foolish and combative we will be about it. Here's Elisabeth Bumiller's account of how, "Like hostile nations on the edge of apocalypse, Washington's political right and left are on code red over a Supreme Court vacancy that does not yet exist."

Because to be a Supreme Court Justice is to be one-ninth of a philosopher-king, with tremendous power and a congenial life. Not to mention having 4 very bright, very hard-working young people to do all the philosophical grunt work.

Roger's answer may not necessarily be the whole truth, but it's a big part of the truth.

Supreme Court justices are not the only people who stay in place. Consider tenured professors. Ann, how many of your peers move to nontenured positions? Rather fewer, I suspect, than would be expected from people at the top of their professions. Perhaps you have some insight into the mindset that keeps such people in place. Do you ever consider leaving teaching? I conjecture that reaching a prestigious lifetime appointment is such a taxing climb that most people who make it won't trade in their perks and voluntarily re-expose themselves to insecurity.

(Please don't take the foregoing as snideness. One of my comments to your 20050528 'The graceful Condoleezza' post noted that you'd make a good judge.)

Ann writes "The Supreme Court Justices would make as much money if they retired as they do working. They get no additional money and they work very hard..." No doubt public service is part of their motivation, and I thank the better angels of their natures. At the same time, I suspect that their paychecks are only part, perhaps a small part, of their remuneration.

I wonder what kind of incentives/disincentives it would take to increase turnover on the Supreme Court (and other federal courts). There's always the law of unintended consequences. It's probably better to have judges sticking around too long than to have a revolving-door judiciary.

What incentives should be used? I object to real financial incentives. The Constitution gives federal judges life tenure without salary reductions. They should be left independent. But I would like to see them think through what they are doing and to be responsible about their decisions. I assume they feel a profound sense of responsibility. But there is no clear message coming from us that they are doing something inappropriate by holding their position for decades, letting whole presidential administrations elapse without a single appointment. I think if we were to let them know -- maybe even by blogging! -- that they undermine their reputation by staying too long, it would be an incentive to end on a high note, to leave before their decline, to willingly cede their position to someone else.

When I went to law school (Harvard in the early '70s), the place seemed to be permeated by the idea that the best thing in the world a person could be was a Supreme Court Justice (second was a tie between lower court federal judge and law professor). The job combined tremendous power AND public service. You could tell people what their laws had to be, but it was for their own good.

To give that up is psychologically difficult. You may make more money but you lose a lot of what economists call "non-pecuniary compensation."

Giving up your seat means that decisions will be different than they would have been had you stayed. Since Supreme Court Justices are not known for small egos, this is painful. It may be unbearably painful, enough to make you stay through decline until death, if you think your successor will think significantly differently than you do.